Ky. High Court Weighing Case Of Death Row Inmate

Aug 16, 2012

LOUISVILLE, Ky.  -  A missing section of a Kentucky death row inmate's brain may have affected his decision making when he killed three children, attacked their mother and later pleaded guilty to the crime, a lawyer told the state's high court Thursday.

Kevin Wayne Dunlap's capacity to control his impulses and make rational judgments were likely impaired by the lack of a right frontal lobe in his brain, appeals attorney Kathleen Schmidt said during oral arguments in Dunlap's case. But a judge unnecessarily pressed on with resolving the case quickly and denied trial attorneys an opportunity to look into how the brain malformation affected their client, Schmidt said.

"This is not about his brain being smaller than other people's brains," Schmidt said. "He doesn't have the things that other people have that control functions of people's behavior."

Justices on the Kentucky Supreme Court in Frankfort appeared skeptical of Schmidt's contentions, repeatedly asking Schmidt how more testing on Dunlap would have made a difference in the outcome of the case.

"I've heard this argument so many times, that anybody who wants to plead guilty in a capital case has got to be insane," Justice Wil Schroeder said. "I don't buy that."

Dunlap, 40, was sentenced to death March 19, 2010. He pleaded guilty to stabbing and killing 5-year-old Ethan Frensley, 17-year-old Kayla Williams and 14-year-old Kortney Frensley when they returned home from school on Oct. 15, 2008, in Roaring Springs, near the sprawling Fort Campbell military installation on the Kentucky-Tennessee state line. Dunlap remains on Kentucky's death row at the state penitentiary in Eddyville.

Earlier in the day, Dunlap had tied up the mother of the children, Kristy Frensley, then raped and attempted to stab her to death. Dunlap set the house on fire, but Kristy Frensley escaped by rolling out the back door.

Dunlap initially asked to plead guilty, but mentally ill. Circuit Judge C.A. Woodall rejected the request after reviewing evidence in the case and accepted a guilty plea with no conditions. He later followed a jury's recommendation and sentenced Dunlap to death. Woodall said he found that Dunlap didn't meet the legal definition of mentally ill.

The Associated Press does not identify victims of sexual assault, but Kristy Frensley gave her permission during the legal proceedings for her name to be used.

Schmidt said the brain malformation rendered Dunlap incompetent to plead guilty to a capital offense, but because the tangle of blood vessels where the brain matter should be was discovered so late, no one had a chance to look at how it affected his life before the crime.

Schmidt noted that Dunlap couldn't discuss the case with doctors or the court and has never said why he chose to plead guilty to an offense that could result in an execution.

"He couldn't answer questions about the crime. He couldn't answer questions about the plea," Schmidt said. "There's no confidence he made a rational choice here."

Justice Lisabeth Hughes Abramson noted that Dunlap repeatedly had competency and mental health tests before his guilty plea, with each test producing results allowing the case to go forward. The brain malformation, which Dunlap was likely born with, didn't seem to make a difference, Abramson said.

"Why does neuroanatomy matter?" Abramson asked. "Is it going to get to the point where we're going to start looking to the gray matter in someone's brain to see if they have enough?"

Justice Mary Noble said Schmidt's argument seemed to be focusing on whether Dunlap was criminally responsible for the killings, not whether he was competent to plead guilty or stand trial. Criminal responsibility "is gone" in this case, Noble said.

"It's a little annoying to me that we keep talking about his missing brain and his brain being gone," Noble said. "We don't know anything about the size of his brain or anything totally about how the size of his brain affects anything."

Dunlap served in the Army from 1989 until 2002, including working as a helicopter mechanic for the 160th Special Operations Aviation Regiment, a group known as the "Night Stalkers." After being released from the Army, he served two years with the Kentucky National Guard in a now defunct unit based in Hopkinsville.

Schmidt noted Dunlap's clean background before the attacks and said the lack of testing after the discovery of the abnormality robbed defense attorneys of an opportunity to use it as mitigation evidence before a jury at sentencing.

"There are different stressors in your life at different times," Schmidt said. "That's what they needed to look at."

"Have you done any of that since the trial?" Schroeder asked.

"No," Schmidt responded.